The Times settles Nightjack claim for £42,500 plus costs

Why there should now be a "Nightjack" test for proposals for press regulation.

The New Statesman can reveal that the Times has settled the civil claim brought by "Nightjack" blogger Richard Horton for £42,500 plus legal costs. 

Horton brought his civil claim for breach of confidentiality, misuse of private information and deceit after it emerged that his identity had not been uncovered by some brilliant piece of detective work by a staff journalist, as was maintained by the newspaper at the time, but had been established instead by unauthorised access to the blogger's email account.

There will now be a statement in open court by the Times before the end of this month.

As there is now a criminal investigation related to this matter - a journalist has been been arrested and a former in-house lawyer has been interviewed under caution - not a great deal more can be said about the circumstances of the unauthorised access.  It is a matter entirely  for the criminal courts to determine whether there is any criminal liability arising - a settlement of a civil claim does not and should not prejudice any criminal investigation.  Certainly nothing in this post should be taken to suggest any criminal liability of any person or entity connected with the case.

And given the criminal investigation, there is little which those involved can currently say about this particular case.  Horton's lawyer Mark Lewis tells me only that whilst he is delighted that his client has won substantial compensation, nothing can put Horton back in the position that his identity was secret. 

And Horton says, "I am happy to have settled with the Times and I can now put that incident behind me and get on with my life".

 

A "Nightjack test" for press regulation?

However, there is perhaps a wider issue about the case apart from the now settled civil claim and the current criminal investigation. 

The Nightjack case raises a general point relevant to the debate on press regulation which will follow publication of the recommnedations of the Leveson Inquiry.

Quite simply, without the Leveson Inquiry's effective use of statutory powers, the Nightjack incident would never have come to light.  It is thereby a perfect example of what remains hidden with "self-regulation", still the the preferred model of many in the newspaper industry.

Here it is important to note that the story only emerged when the New Statesman analysed witness statements submitted by various figures from News International in response to formal (and legally backed) requests for evidence (the full account is set out here). 

Even then, News International was initially reluctant to give a full account, and it was only when both the editor and the former legal manager of the Times were summoned to give oral evidence to the Leveson Inquiry on the incident that the fuller picture emerged of what had actually happened.

As Prof Brian Cathcart, director of Hacked Off, told me earlier today:

The Nightjack affair is a clear case of a newspaper behaving unjustly and  it would never have come to light but for the scrutiny of the Leveson Inquiry, a body with real legal clout.

No voluntary, self-regulatory regime would ever have unearthed the facts.

This is further proof that we need an effective press regulator that has teeth and is genuinely independent the press industry as well as of government.

Tom Watson MP agrees:

I hope the Prime Minister and other members of the cabinet now realise that without the statutory powers of the Leveson Inquiry none of this whole sorry saga involving Times Newspapers and News International would ever have seen the light of day.

One test - which perhaps should be called the "Nightjack test" - of any non-statutory proposals for press regulation will be how an envisaged regulator can obtain relevant documentary and witness evidence from an unwilling news title. 

Would some non-statutory regulator really be able to obtain information from a title akin to that which the Leveson Inquiry was able to prise from News International in respect of the Nightjack incident?

For many it is difficult to see how any contractual or voluntary basis for press regulation could pass this important "Nightjack test" - it would merely (again) be regulation at the fiat of the regulated.

And unless any post-Leveson press regime can pass such a "Nightjack test" then the old pre-Leveson abuses could well continue.

 

David Allen Green is legal correspondent of the New Statesman

 

POSTSCRIPT

Richard Horton has now made the following comment below the line:

None of the above would have happened without the patient, detailed forensic dissection of the facts by David Allen Green at the New Statesman. It feels like a huge weight has been lifted from my life and after 3 years of not writing anything worth a damn, I am back writing for pleasure again. Leveson was undoubtedly the lever but without David's work at the fulcrum, I would still be sat here 3 years later strongly suspecting wrongdoing but entirely without evidence.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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David Osland: “Corbyn is actually Labour’s only chance”

The veteran Labour activist on the release of his new pamphlet, How to Select or Reselect Your MP, which lays out the current Labour party rules for reselecting an MP.

Veteran left-wing Labour activist David Osland, a member of the national committee of the Labour Representation Committee and a former news editor of left magazine Tribune, has written a pamphlet intended for Labour members, explaining how the process of selecting Labour MPs works.

Published by Spokesman Books next week (advance copies are available at Nottingham’s Five Leaves bookshop), the short guide, entitled “How to Select or Reselect Your MP”, is entertaining and well-written, and its introduction, which goes into reasoning for selecting a new MP and some strategy, as well as its historical appendix, make it interesting reading even for those who are not members of the Labour party. Although I am a constituency Labour party secretary (writing here in an expressly personal capacity), I am still learning the Party’s complex rulebook; I passed this new guide to a local rules-boffin member, who is an avowed Owen Smith supporter, to evaluate whether its description of procedures is accurate. “It’s actually quite a useful pamphlet,” he said, although he had a few minor quibbles.

Osland, who calls himself a “strong, but not uncritical” Corbyn supporter, carefully admonishes readers not to embark on a campaign of mass deselections, but to get involved and active in their local branches, and to think carefully about Labour’s election fortunes; safe seats might be better candidates for a reselection campaign than Labour marginals. After a weak performance by Owen Smith in last night’s Glasgow debate and a call for Jeremy Corbyn to toughen up against opponents by ex Norwich MP Ian Gibson, an old ally, this pamphlet – named after a 1981 work by ex-Tribune editor Chris Mullin, who would later go on to be a junior minister under Blai – seems incredibly timely.

I spoke to Osland on the telephone yesterday.

Why did you decide to put this pamphlet together now?

I think it’s certainly an idea that’s circulating in the Labour left, after the experience with Corbyn as leader, and the reaction of the right. It’s a debate that people have hinted at; people like Rhea Wolfson have said that we need to be having a conversation about it, and I’d like to kickstart that conversation here.

For me personally it’s been a lifelong fascination – I was politically formed in the early Eighties, when mandatory reselection was Bennite orthodoxy and I’ve never personally altered my belief in that. I accept that the situation has changed, so what the Labour left is calling for at the moment, so I see this as a sensible contribution to the debate.

I wonder why selection and reselection are such an important focus? One could ask, isn’t it better to meet with sitting MPs and see if one can persuade them?

I’m not calling for the “deselect this person, deselect that person” rhetoric that you sometimes see on Twitter; you shouldn’t deselect an MP purely because they disagree with Corbyn, in a fair-minded way, but it’s fair to ask what are guys who are found to be be beating their wives or crossing picket lines doing sitting as our MPs? Where Labour MPs publicly have threatened to leave the party, as some have been doing, perhaps they don’t value their Labour involvement.

So to you it’s very much not a broad tool, but a tool to be used a specific way, such as when an MP has engaged in misconduct?

I think you do have to take it case by case. It would be silly to deselect the lot, as some people argue.

In terms of bringing the party to the left, or reforming party democracy, what role do you think reselection plays?

It’s a basic matter of accountability, isn’t it? People are standing as Labour candidates – they should have the confidence and backing of their constituency parties.

Do you think what it means to be a Labour member has changed since Corbyn?

Of course the Labour party has changed in the past year, as anyone who was around in the Blair, Brown, Miliband era will tell you. It’s a completely transformed party.

Will there be a strong reaction to the release of this pamphlet from Corbyn’s opponents?

Because the main aim is to set out the rules as they stand, I don’t see how there can be – if you want to use the rules, this is how to go about it. I explicitly spelled out that it’s a level playing field – if your Corbyn supporting MP doesn’t meet the expectations of the constituency party, then she or he is just as subject to a challenge.

What do you think of the new spate of suspensions and exclusions of some people who have just joined the party, and of other people, including Ronnie Draper, the General Secretary of the Bakers’ Union, who have been around for many years?

It’s clear that the Labour party machinery is playing hardball in this election, right from the start, with the freeze date and in the way they set up the registered supporters scheme, with the £25 buy in – they’re doing everything they can to influence this election unfairly. Whether they will succeed is an open question – they will if they can get away with it.

I’ve been seeing comments on social media from people who seem quite disheartened on the Corbyn side, who feel that there’s a chance that Smith might win through a war of attrition.

Looks like a Corbyn win to me, but the gerrymandering is so extensive that a Smith win isn’t ruled out.

You’ve been in the party for quite a few years, do you think there are echoes of past events, like the push for Bennite candidates and the takeover from Foot by Kinnock?

I was around last time – it was dirty and nasty at times. Despite the narrative being put out by the Labour right that it was all about Militant bully boys and intimidation by the left, my experience as a young Bennite in Tower Hamlets Labour Party, a very old traditional right wing Labour party, the intimidation was going the other way. It was an ugly time – physical threats, people shaping up to each other at meetings. It was nasty. Its nasty in a different way now, in a social media way. Can you compare the two? Some foul things happened in that time – perhaps worse in terms of physical intimidation – but you didn’t have the social media.

There are people who say the Labour Party is poised for a split – here in Plymouth (where we don’t have a Labour MP), I’m seeing comments from both sides that emphasise that after this leadership election we need to unite to fight the Tories. What do you think will happen?

I really hope a split can be avoided, but we’re a long way down the road towards a split. The sheer extent of the bad blood – the fact that the right have been openly talking about it – a number of newspaper articles about them lining up backing from wealthy donors, operating separately as a parliamentary group, then they pretend that butter wouldn’t melt in their mouths, and that they’re not talking about a split. Of course they are. Can we stop the kamikazes from doing what they’re plotting to do? I don’t know, I hope so.

How would we stop them?

We can’t, can we? If they have the financial backing, if they lose this leadership contest, there’s no doubt that some will try. I’m old enough to remember the launch of the SDP, let’s not rule it out happening again.

We’ve talked mostly about the membership. But is Corbynism a strategy to win elections?

With the new electoral registration rules already introduced, the coming boundary changes, and the loss of Scotland thanks to decades of New Labour neglect, it will be uphill struggle for Labour to win in 2020 or whenever the next election is, under any leadership.

I still think Corbyn is Labour’s best chance. Any form of continuity leadership from the past would see the Midlands and north fall to Ukip in the same way Scotland fell to the SNP. Corbyn is actually Labour’s only chance.

Margaret Corvid is a writer, activist and professional dominatrix living in the south west.